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CHAPTER.3
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Contracts
In General
"Party cannot be bound by contract that he has not made or
authorized." Alexander v. Bosworth (1915), 26 C.A. 589, 599, 147
P.607.
"The intention of one party does not make contract." Barrios
& Co. v. Pettigrew (G. V.) Co. (1924), 68 C.A. 139, 228 P. 676.
"The complaint, on its face, must show that the plaintiff has
the better right." Rogers v. Shannon (1877), 52 C. 99.
Statutory Contract
"Statutory is a contract which the statute says shall be
implied from certain facts, and is governed by the ordinary rules
relating to contracts." Foley v. Leisy Brewing Co., 89 N.W. 230,
231, 116 Iowa 176.
Contracts Implied in Law
"A contract "implied in law" is but a duty imposed by law and
treated as a contract for the purposes of a remedy only." G. T.
Fogle & Co. v. United States, 135 F.2d 117, 120.
"Contracts "implied in law" imply a promise to pay, whether or
not any such promise was made or intended." In Re Altmann's Will,
266 N. Y. S. 773, 779, 149 Misc. 115.
"Contract "implied in law" is, however, a term used to cover
a class of obligations, where the law, though the defendant did not
intend to assume an obligation, imposes an obligation upon him,
notwithstanding the absence of intention on his part, and, in many
cases, in spite of his actual dissent. Such contracts...may be
termed quasi-contracts and are not true contracts. They are found
generally;
2. Upon statutory, official, or customary duties...
Bouvier's Law Dictionary (1914), Vol. I, p. 661. Clark on
Contracts, Quasi-Contracts, p. 531.
Quasi-Contracts
"An obligation similar in character to that of a contract, but
which arises not from an agreement of parties but from some
relation with them, or from a voluntary act of one of them."
Bouvier's Law Dictionary, supra, Vol. III, p. 2781.
"Quasi contracts were a well defined class under the civil
law. By the civil code of Louisiana they are defined to be "the
lawful and purely voluntary acts of man, from which there results
any obligation whatever to a third person and sometimes a
reciprocal obligation between parties. In quasi-contracts the
obligation arises not from consent, as in the case of contracts,
but from the law of natural equity." Bouvier's Law Dictionary, id.
"According to Professor Ames (Lect. on Leg. Hist. 160), the
term was not found in the common law, but it has been taken by
writers of the common law from the Roman Law.
* * *
It need only be added here that quasi contracts were in Roman
Law in almost infinite variety, but were divided into five (5)
classes:
1. Gregotirorum gestio, the management of the affairs of
another, without authority..." Bouvier's Law Dictionary, id.
Quasi-Contracts as fictions of law
"Both in Roman and English law there are certain obligations
which were not in truth contractual, but which the law treats as IF
they were. They are contractual in law, but not in fact, being the
subject-matter of a FICTITIOUS extension of the sphere of contract
to cover obligations which do not in reality fall within it."
Salmond, Salmond on Jurisprudence, p. 642 (9th Edition, 1937, Sweet
& Maxwell, Ltd. England).
"Constructive/quasi-contracts are created by statute on the
premise that they are needed as a matter of reason and justice, and
are allowed to be enforced ex contractu." Kraft Foods Co. of Wisc.
v. Commodity Credit Corp.,266 F.2d 254; Hill v. Waxberg, 237 F.2d
936.
"Ex contractu is a form of action under the civil law, whereas
under the commmon law it would arise from actions of case,
trespass, replevin, trover, or detinue. Ex contractu actions are
from the civil law, not the common law, and are enforced by actions
in personam." Indep. School District of White Bear Lake v. City of
White Bear Lake, 292 N.W. 777.
"Constructive/quasi contracts are based solely upon a legal
fiction or fiction of law." Hill v. Waxberg, 237 F.2d 936.
"Since there is no agreement and a remedy is disired, they are
treated as a contract." Stipp v. Doran, 18 F.2d 83, 84.
"Since there is no agreement as in contracts, the obligation
arises from natural equity." Riscarhson v. Permacel Tape Corp.,
244 F.2d 80.
"Constructive/quasi contracts include obligations founded on
statutory duties." Donovan v. Kansas City, 175 S. W. 2d 874; In Re
United Burton Co., 140 F. 495, 502.
"A quasi contractual action presupposes acceptance and
retention of a benefit by one party with full appreciation of the
facts, under circumstances making it inequitable for him to retain
the benefit without payment of its reasonable value." Major-
Blakeney Co. v. Jenkins (1953), 121 C.A.2d 325, 263 P.2d 655, hear
den.; Townsend Pierson, Inc. v. Holly-Coleman Co. (1960), 178
C.A.2d 373, 2 Cal. Rptr. 812.
"Existence of implied contract is usually a question of fact
for trial court." Caron v. Andrew (1955), 133 C.A.2d 412, 284 P.2d
550, hear den.; Bolster (C. F.) Co. v. Boespflug (J. C.)
Construction Co. (1959), 167 C.A.2d 143, 334 P.2d 247, hear den.
"A debt resulting from a normal agreement or contract has
always been the result of a promise to pay, and invoked a remedy in
the form of assumpsit. However, an assumpsit cannot be applied to
actions of debts where there is no agreement unless the court does
so by means of a fiction, because in order to support assumpsit, it
is necessary to allege a promise, and without agreement there is no
promise. Historically, the courts have adopted the fiction of a
promise, and it was declared that a promise was implied in law."
Keener, "Quasi-Contracts", pp. 4-5.
As Convenience for Remedy in Equity
"For the convenience of the remedy, they have been made to
figure as though they sprang from contract, and have appropriated
the form of agreement." Anson, Contracts (8th Ed.), p. 362.
The Supreme Court of California stated that actions founded on
licenses issued by the State and their fees are in form common law
actions of assumpsit upon an implied contract. Welsbach Co. v.
State of California (1929), 206 C. 556.
". . . not only unscientific, and therefore theoretically
wrong, but is also destructive of clear thinking, and therefore
vicious in practice. It needs no argument to establish the
proposition that it is not scientific to treat as one and the same
thing an obligation that exists in every case because of the assent
of the defendant, and an obligation that not only does not depend
in any case upon his assent, but in many cases exists without his
assent." Keener, "Quasi-Contracts", p. 3.
Promises Implied in Law
"A promise implied in law is one in which neither the words
nor the conduct of the party involved are promissory in form, or
justify an inference of a promise. The term is used to indicate
that a party is under a legally enforceable duty, as he would have
been if he had in fact made a promise. Ferrous Products Co. v.
Gulf States Trading Co., 323 S. W. 2d 292.
Benefit and Burden from Contracts
"It is a well settled rule of law that he who seeks benefits
of contract must also assume burdens." Higgins v. Monckton (1938),
28 C.A.2d 723, 83 P.2d 516.
"Voluntary acceptance of benefit of transaction is equivalent
to consent to all obligations arising from it, so far as facts are
known, or ought to be known, to person accepting." Northern
Assurance Co. v. Stout (1911), 16 C.A. 548, 117 P. 617.
"Legislature is without power to affect past contracts, or to
alter or destroy nature or tenure of estates [i. e. the estate of
California]." Dewey v.Lambier, 7 Cal. 347; McKinney's New
California Digest (1961), Constitutional Law 125, p. 548 and
134, p. 558.
Performance
"Where performance depends on existence of a given thing
[consideration, benefit] assumed as the basis of the agreement,
performance is excused to extent that thing ceases to existthe fair
import of their terms, without reference to the hardships that may
fall upon the parties. . .If persons voluntarily express themselves
in writing, they must be bound by language employed; law presumes
that they understand import of their own contracts, and have
entered into them with knowledge of their mutual rights." Abbott v.
Gatch, 71 D. 735.